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Cuyahoga County Council President says Ed FitzGerald isn't following law by waiting to fill expired MetroHealth board terms

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Cuyahoga County Council President C. Ellen Connally says County Executive Ed FitzGerald isn't following the law when it comes to filling expired terms on the MetroHealth board.
(Peggy Turbett, The Plain Dealer)

Connally, a retired judge, told Northeast Ohio Media Group she is concerned that the interim status of the three trustees could become a legal problem if someone were to sue the healthcare system.

She also said FitzGerald risks losing his ability to appoint a replacement for Ron Fountain and William Gaskill by allowing their terms to lapse for more than six months. State law, she said, requires the MetroHealth board to fill seats if the county doesn't act during that time.

That six-month window also will close on the third board member, Charles Spain, in September, she said.

A MetroHealth spokesman did not answer questions posed by NEOMG about whether the board has acted on the three expired board members' terms.

However, Connally says Fountain's term expired in March 2012, and Gaskill's in 2013.

"I'm not here to bash Ed FitzGerald or to cause any stir, but we have a process," Connally said in a recent interview. "I think the law should be followed, and I think the reason you have these public appointments to the board is to provide for this public input for the trustees. And that's not happening."

FitzGerald "respectfully disagrees" with Connally's concerns over allowing MetroHealth board members to continue serving after their terms have expired, said spokesman Rich Luchette.

The FitzGerald administration has taken its time in filling the expired MetroHealth seats "to ensure that we have the best people to serve in these positions," he said.

"We've checked and double-checked this matter with the County's Law Department," Luchette said in an email. "[...]Nominees that have been identified are presently going through the approval process, which includes consultation with the courts, and will be submitted to County Council soon. In the meantime, there are no vacancies on the MetroHealth board since the law provides for qualified individuals to continue serving. We have and will continue to maintain a strong line of communication with MetroHealth and other stakeholders as this process continues."

FitzGerald has put forth one MetroHealth nomination this year. Last month, council confirmed MetroHealth board chairman Thomas McDonald, whose term expired in March, for another six-year term.

In a June 25 letter to FitzGerald, Connally criticized FitzGerald for not replacing or re-appointing Fountain and Gaskill, and urged him to act quickly to replace Spain, whose term expired last March.

If the position remains vacant, the remaining members of the hospital board "by majority vote, shall appoint an individual to fill the vacancy, " the law reads.

In the letter, which Connally asked council staff to provide to NEOMG, Connally wrote that by not acting to fill their expired terms, FitzGerald has allowed the MetroHealth board to self-perpetuate.

"As a result of your failure to make these critical board appointments within the prescribed time period, neither members of County Council nor the two Common Pleas Court Judges will have an opportunity to review and/or have input into the appointments of two, and possibly three of the current vacancies," Connally wrote. "However, we recognize that the law must be followed and have complete faith in the remaining members of the MetroHealth Board to make the appropriate decision regarding membership on the board, one that will best serve the interests of the citizens of Cuyahoga County."

But in a Feb. 28 letter to MetroHealth CEO Akram Boutros, County Law Director Majeed Makhlouf wrote that the holdover trustees pose no legal issues.

He cited a different state law that says: "A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state."

Makhlouf, who works for FitzGerald but also serves as county council's lawyer, wrote a board member's term expiring doesn't create a "vacancy."

"This is the same interpretation we apply for other boards," Makhlouf wrote.

Both Connally and FitzGerald are not running for re-election, and will leave office at the end of the year. Connally is retiring from public life, while FitzGerald is running for governor.

The two have a relationship that is often contentious.

In an email, MetroHealth spokesman Jonah Rosenblum said: "We are confident that the County Executive and County Council will act in the best interests of the community to address board vacancies."

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